My sister called me on Sept. 20, 2017, around 7 a.m. She said, “We are fine, but I am scared. I do not know if the windows are going to hold. The wind is too strong.” That was the last I heard from my family in Puerto Rico during Hurricane María.

Climate-Driven Natural Disasters

I wasn’t the only one worried. Natural disasters in 2017 were of epic proportion. According to the National Oceanic and Atmospheric Administration (NOAA), the summer of 2017 was the hottest on record, and there is a link between the rising temperatures and the increase in wildfires and extreme weather events. In August 2017, Hurricane Harvey required around 10,000 rescue missions in the city of Houston. In September, Hurricane Irma destroyed 95 percent of the island of St. Martin. Irma also destroyed the island of Barbuda, leaving most of its inhabitants homeless. Irma hit Florida, as well, forcing millions of people to evacuate. Two weeks later, Hurricane Maria devastated Puerto Rico, causing thousands of fatalities and displacing some 2,000 people from other Caribbean islands who had earlier sought refuge in Puerto Rico after they were hit by Hurricane Irma.

Communities with better economic resources could adapt better to the increasing risks and changes associated with climate change. For example, St. Martin received millions in aid from the Dutch government for its rconstruction efforts. Meanwhile, Barbuda is far from recovery. And while Florida, Texas, and Puerto Rico each received recovery funds from the Federal Emergency Management Agency (FEMA), the disbursement of funding was not proportionate to the damage caused by each disaster.

The differences in FEMA support may have resulted from political indifference. Nine days after Maria’s landfall, for example, the federal staff in Puerto Rico numbered 10,000 in comparison to 30,000 in Texas after Harvey, even though the island’s electric grid suffered a complete blackout for months. Disparities in recovery outcomes also occurred within individual jurisdictions. For instance, within Texas, minority communities may have been the most affected by Harvey. In particular, immigrants struggled to receive government aid during the hurricane’s aftermath. Studies conclude that immigrants were less likely to report damages or request assistance because they lacked insurance and feared drawing the attention of federal agencies that could question their immigration status.

Climate Refugees

Federal law does not bar noncitizens from assistance. On the contrary, the Stafford Act prohibits discrimination “on the grounds of race, color, religion, nationality, sex, age or economic status,” and federal aid under the Stafford Act includes supply of essential needs like food and housing. The current political climate demonizing immigration, however, may affect the government’s response to noncitizens affected by natural disasters.

Although international law does not recognize the term “climate refugee,” increasing numbers of people are forced to cross borders to seek safety from disasters caused or made worse by climate change. The 1951 Refugee Convention does not seem to address the problem. Similarly, the United States Immigration and Nationality Act recognizes a refugee as “a person who is unable or unwilling to return to his or her home country because of a well-founded fear of persecution due to race, membership in a particular social group, political opinion, religion, or national origin,” apparently failing to protect those displaced by extreme weather events like droughts, fires, or flooding. The lack of recognition in international or domestic law puts climate refugees at a disadvantage compared to those seeking asylum for other reasons.

By contrast, those displaced within their own country due to natural disasters are recognized as Internally Displaced Persons (IDPs). According to the U.N. High Commission on Refugees, IDPs are people forced to leave their homes but who “stay within their own country and remain under the protection of its government.”

Since 2008, at least 24 million people worldwide have been displaced due to extreme weather events. An additional 143 million people could be displaced due to climate impacts in the future. The most vulnerable regions are Latin America, sub-Saharan Africa, and South Asia.

A few countries are beginning to create climate migration policies. Currently, New Zealand provides indefinite settlement to residents of island nations in the Pacific threatened by climate change. New Zealand’s Pacific Access Category Resident Visa is an example of an initiative that could help future climate refugees elsewhere. Also, the European Parliament recently published a report suggesting the expansion of the European Union’s current refugee law to respond to the needs of climate refugees.

Climate Resilience

As increasingly destructive weather events affect more communities, policymakers are regularly turning to the concept of resilience to manage planning for and responses to natural disasters. The Intergovernmental Panel on Climate Change (IPCC) defines resilience as the capacity of a system to “anticipate, absorb, accommodate, or recover from the effects of a hazardous events” in a timely way, “including through ensuring the preservation, restoration, or improvement of its essential basic structures and functions.” Resilience is an evolving concept that includes the capacities of adaptation and mitigation.

Recently, the executive branch has faced criticism for its ineffective reaction to natural disasters. In contrast, many states and cities have developed forward-looking climate-resilient pathways—“trajectories that combine adaptation and mitigation with effective institutions to realize the goal of sustainable development.” For instance, in 2015 Pittsburg named a Chief Resilience Officer to help communities adapt to extreme weather events. The Pacific Coast Collaborative (PCC)—a partnership between states and cities in western North America—launched a coordinated climate resilience effort in September 2018. The PCC is working on strategies to prevent and manage natural disasters, on coastal adaptation, on drought prevention strategies, and on other methods to safeguard communities before and after a natural disaster.

Additionally, local government has played a leading role in incorporating climate resilient law and policies towards mitigation. For example, the Alaska Climate Change Mitigation Program, approved by Alaska’s legislature, is supposed to predict the effects of climate change and plan to reduce the risks to native communities. The goal is to include indigenous people in the design of a relocation process protective of their rights and culture. Economically stable countries elsewhere should adapt similar policies and have their citizens participate in the design of a relocation process for climate refugees.

Resilience requires an interdisciplinary approach to the management of natural disasters. But there is a gap in the law, at a national and international level, to accommodate strategies and solutions to the consequences of natural disasters. The federal government could expand its efforts to support state and local governments. And local efforts, like the PCC, could serve as models for resilience collaboration at the international level.

Congress has played a significant role in providing the structure for agencies to make decisions regarding natural disasters. The Coastal Zone Management Act, for example,was enacted in the 1970s to support federal government assistance to the decision-making process of coastal communities, where, according to the United States Census Bureau, nearly 60 million people live in areas exposed to hurricanes. The act addresses issues like coastal hazards, disaster planning, and climate change.

President Trump recently signed into law the Disaster Recovery Reform Act of 2018 (DRRA), amending sections of the Stafford Act. After an active hurricane season, the act addresses some of the problems experienced by survivors: improved evacuation strategies, better pre-disaster mitigation of economic injuries, fairer reimbursement of recovery costs, and regulatory assistance to local governments.

For days I panicked, wondering whether my family made it through the hurricane. Fortunately, my family survived the event. That is not the story of 4,000 other families who lost someone because of Hurricane Maria, however. As natural disasters become more prevalent, resources will become increasingly limited. The experiences of 2017 and 2018 should prompt better balanced funding and policy efforts that include equal protection of the most vulnerable communities, and that recognize climate refugees. An assessment of the law affecting resilience can help identify the factors contributing to vulnerability and ameliorate the impacts of natural disasters like Hurricane Maria on the environment and minority communities, and especially on climate refugees. Natural disasters induced by climate are inevitable in the years ahead, but the resulting catastrophic harm to the most vulnerable among us is not.

Yasmin Perez Ortiz JD’20 graduated from the University of Denver with a bachelor’s degree in law and society and a minor in gender and women’s studies. Yasmín decided that Vermont Law School was the place for her after learning about the school’s active role in the victory against the construction of the ViaVerde pipeline in Puerto Rico. As an undergraduate student, Yasmín studied the effects of socioeconomic status over the deprivation to water access in the United States. Currently, Yasmín is focusing her legal studies on water quality. As a staff editor of the Vermont Journal of Environmental Law, Yasmín is researching how blockchain technology could improve the quality of drinking water in Puerto Rico.

Professor Stephen Dycus is an internationally recognized authority on national security law and environmental law. The courses he has taught at Vermont Law School include Public International Law, National Security Law, Estates, Property, and Water Law.phone: 802-831-1292, email: SDYCUS@vermontlaw.edu

Before joining the Center for Agriculture and Food Systems at Vermont Law School in 2017, Emily Spiegel was a consultant and law fellow at the Duke Environmental Law and Policy Clinic. She has been an International Agricultural Development Specialist with the U.S. Department of Agriculture’s Foreign Agricultural Service, and has interned in Rome, Italy, at the legal offices of the Food and Agriculture Organization and the International Fund for Agricultural Development.
phone: 802-831-1072, email: ESPIEGEL@vermontlaw.edu